Dr. Oladipo Maja V. Mr. Costa Samouris (2002)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C.

The proceedings leading to this appeal were first instituted in the High Court of Justice, Lagos State. In that court, the plaintiff claimed against the defendant the sum of N2,000,000.00 (Two million Naira) being special and general damages for trespass and nuisance allegedly committed by the defendant on the plaintiff’s Tomaro Island Jetty at Marine Road, Apapa, Lagos. The particulars of the damages claimed are averred in the plaintiff’s Statement of Claim as follows:-

(i) Special Damages for loss of earnings N200,000.00

(ii) General Damages for Trespass N1,000.000.00

(iii) General Damages for Nuisance N800.000.00

Total N2,000.000.00

The defendant duly entered appearance as prescribed by the Rules of court but failed to file his statement of defence in the suit. Consequently, the plaintiff, by a motion on notice filed on the 28th day of January, 1994, prayed the court for an order pursuant to the provisions of Order 24 Rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1972 entering final judgment for the plaintiff in terms of his writ and statement of claim in default of filing any statement of defence by the defendant.

On the 25th April, 1994, neither the defendant nor his learned counsel was in Court for the hearing of the motion although served. The plaintiff duly moved his application and the learned trial Judge, Sahid, J. entered default judgment against the defendant in the suit in the sum of N1,000,000.00 (One million Naira) being general damages for trespass and nuisance. The plaintiff’s claim of N200,000.00 for alleged special damages was dismissed for want of proof. Said the learned trial Judge:

“… as to the damages claimed, the plaintiff/applicant has failed to prove the special damages of N200,000.00 specially and so that claim is dismissed. For the separate claims of N1,000,000.00 for trespass and N800,000.00 for nuisance, there shall be awarded damages of N500,000.00 and N500,000.00 respectively. Accordingly, it is hereby adjudged that plaintiff/applicant do recover against the defendant/respondent the sum of N1,000,000.00 damages and there shall be N500.00 costs, in favour of the plaintiff/applicant.”

Dissatisfied with this judgment of the trial court, the defendant lodged an appeal against the same to the Court of Appeal, Lagos Division. Before the Court of Appeal, one single issue was formulated by the defendant/appellant and endorsed by the plaintiff/respondent as arising for the determination of the appeal. This issue was framed thus:-

“Whether the learned trial Judge could properly have entered final judgment against the appellant in default of defence as he did in the absence of specific proof of the unliquidated pecuniary damage claimed by the respondent”

The defendant/appellant had in his Notice and Grounds of Appeal to the Court of Appeal claimed three reliefs, as follows:

(i) An order of the Court of Appeal allowing his appeal and setting aside the judgment of the trial court dated the 25th April, 1994.

(ii) Consequent upon order (i) above, a further order setting aside the executions levied on the defendant/appellant on the 8th June and the 22nd September, 1994 respectively and any other action taken pursuant to the said judgment.